Judicial reform raises risk of war crime charges - ex-IDF int'l law chief

Many IDF reservists have said they have quit or will quit because the government’s weakening of the judiciary by repealing its reasonableness standard review power puts them at greater risk of alleged war crimes prosecution, a former IDF international law expert said Tuesday.

Former IDF international law division chief Col. (res.) Eran Shamir-Borer, currently at the Israel Democracy Institute, weighed in on the threat from the International Criminal Court and some key points from public opinion surveys about the judicial reform and the IDF reservist protests.

Those supporting the government say the ICC is either hopelessly biased against Israel anyway or that the ICC does not care about the repeal as long as the Israeli Supreme Court still has other tools for judicial review.

How does the ICC view Israel's judiciary and how it handles alleged war crimes?

For example, the ICC’s own Rome Statute, according to the complementarity rule, prevents it from intervening if a country’s independent court system self-investigates alleged war crimes.

Shamir-Borer said, “What do current changes do to our ability to claim complementarity before the ICC? Or for other jurisdictions: the risk for arrest warrants or other legal proceedings… on the basis of universal jurisdiction or foreign states’ regulation of norms,'' citing recent criminal allegations against Israeli officials in Germany and other countries.

The IDI official acknowledged, “There isn’t one formula for what is an independent legal system. You need independence to establish complementarity. It is very hard to know how the prosecution in The Hague or another foreign jurisdiction will exercise their discretion.”

“In this kind of situation… to begin with we have problems with our system because the examination of allegations of violations of the laws of war are done primarily within the IDF. We know it is an issue, the idea of the IDF investigating itself. In many other countries, this is done by a civilian authority. So there is a legitimacy deficit already,” said the former IDF international law department chief.

Next, he said, “What has been curing this is having a very independent legal system, including the military legal system. There are two very effective layers of civil oversight: the attorney-general and the Supreme Court. As long as they altogether perform quite well, our complementarity argument cannot be doubted.”

But what if “the government keeps doing other aspects of the legislation, not moving forward, but moving backward? Then we will have weakened our ability for the court to provide effective oversight. This is definitely the current situation.”

He asked rhetorically “To what extent” would this increase the chances of ICC or other foreign courts proceeding with war crimes charges? “That is very hard to assess… But it would be more prudent to be more on the safe side than to take unnecessary risks. The government has taken a risk to put us in a less good situation.”

“There are two aspects: the institutional aspects of the system – the independence of the various gatekeepers, now the situation is that the attorney-general or the military advocate general (MAG) could be released [fired] from their position even based on arbitrary reasons and the court would not be able to review that,” he stated.

Shamir-Borer continued, “Obviously this might impact their independence…There is also a concern about a chilling effect.” He asked what happens “If she makes the ‘wrong’ decision and indicts” an IDF soldier like Elor Azaria, the 2015 “Hebron Shooter” and then she worries that she would be fired? “This might create a chilling effect. It is hard to assess how it would be viewed across the globe.”

Repealing the judiciary’s reasonableness standard, “opens room for dubious operational policies, when the court is reviewing operational policies and conduct, methods, means of warfare, it relies on the reasonableness aspect to inject its review of international law.”

Moreover, he said, “Very often the court would affirm the policy under review, such as the targeted killings policy, the legality of operations” on the Gaza border in 2018. “The courts upheld IDF policies. This shielded our operations policies from international criticism. If the court cannot review these policies in the first place, that is weakening the international shield around these policies,” he warned.

Further, he cautioned, this was true “all the more so if the government adapts practices contrary to international law. The court would not be able to review and sometimes strike them down. The chances of the government adopting these policies and implementing them is also a bigger risk in and of itself.”

Moving to how different political blocs in the country view IDF reservists who have quit to protest the judicial reform, he said, “The context of all of these political and public debates taking place is that we have a government where many of its members did not do significant military service…They on the one hand educate their own contingents not to serve…They are also trying to test and heat the engines for a full exemption for the ultra-Orthodox,” but on the other hand slam IDF reservists who did far beyond mandatory service for quitting.

Shamir-Borer said some criticism has wrongly argued that reservists have never protested before. He said this was inaccurate historically, citing “the late 1970s when Israel withdrew from the Sinai. Rabbis called for the right wing not to obey the command to clear settlements. People also say no one refused to do so on the right wing during the Gaza withdrawal of 2005. This is completely not true.”

“Rabbis called not to obey orders. The IDF did its utmost not to put people in a dilemma. Someone who even whispered that they had an issue evacuating settlements – they were just released from the mission,” he said.

In addition, “They put the police on the frontlines as much as possible, and not the IDF.”

Filling out the picture, he said, “On the left wing, whether regarding reservists or the standing army, some have refused to serve in the occupied territories/West Bank, or during the First Lebanon War, or during the Second Intifada, there was a letter from combat pilots who refused to participate in attacks on the West Bank.”

Also, he said, “IDI has been monitoring public opinion for over 20 years. If affiliated with the right-wing, whether to obey orders or not is a question of a particular mission,” with the answer being yes to most attack operations, but no to helping remove Jewish settlements.

In contrast, he said there has always been a greater respect on the left wing for conscientious objections to serving in military operations.  

Finally, Shamir-Borer warned that the concept of “the people’s army,” which has been a bedrock principle of the IDF for 75 years may finally crack under the weight of decades of erosion plus the current judicial reform standoff.

“I’m afraid we will not be able to rebuild it,” he said.